I wrote to Sophie Masson, writer and Chair of the Australian Society of Authors, about the copyright issues relating to these projects and a few other salient points. The interview got very long, but it’s all too useful and informative to edit down, so I will present Sophie’s responses in two parts. Here is the first question. The remaining two questions will be addressed next post.

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Narrelle: I understand that Project Gutenberg was digitising out-of-copyright books to make them available for posterity and research. What is the difference between them and Google Books/Hathi Trust?

Sophie Masson: Project Gutenberg, as you say, is about digitising truly out of copyright books—books in the public domain, like classics, etc. No-one, least of all the ASA, has a problem with that.

The big difference with the others is that Google Books, initially anyway, was going to digitise every book in the world, in or out of copyright, without reference to rights holders. That was halted in its tracks in the USA in 2005 when authors and publishers sued it for infringement of copyright.

Other countries also followed suit. In France, for instance, Google was separately and successfully sued for attempting to digitise works in a test case relating to books in the holdings of the Lyon public libraries. Google was forced to abandon its proposed digitisation of French books, and instead the French Government stepped up its national digitisation program, known as Gallica.

Google then switched to trying to put together a deal that basically focused only on English-language works, in which the default position would be that rights holders would have to ‘opt out’ of digitisation by Google, but would be renumerated for it, unlike before. Under that 2008 deal, Google agreed to pay a one-time fee of $125 million (all up) to settle with authors and publishers. Some $34 million-plus of this settlement was to go to the creation of a Book Rights Registry, while the remainder was to go to rightsholders—authors and publishers—whose books Google had already scanned without authorisation.

However, this deal was also struck down this year by Judge Denny Chin because it violated antitrust and copyright law—giving Google “a de facto monopoly over unclaimed works” (also known as ‘orphan works’, ie works whose rightsholders have not been identified or cannot apparently be tracked down). It thus cut out competition by other possible digital book repositories, including national ones. It also simply assumed that rightsholders agreed because they hadn’t opted out, even if they might never have heard of the scheme or met the deadline for ‘opting out’ that Google had imposed. So it was back to the negotiating table for Google, negotiations which continue today.

The Hathi Trust is a separate but related issue. Once again it is about the issue of so-called ‘orphan works.’ ‘Orphan works’ are a contested area and the Hathi Trust, which includes a group of five leading US universities (Indiana, California, Cornell, Wisconsin, Michigan) possibly attempted to exploit the vacuum left by Google by launching its own digital repository of such works.

Trouble was, the Hathi Trust actually identified as ‘orphans’, many works that are most certainly copyrighted; many by authors who are not only living but active, such as Fay Weldon, James Shapiro, and Angelo Loukakis, the ASA’s Executive Director. His 1980s novel, Vernacular Dreams, was copied without his permission and without any attempt to contact him. As he memorably said, this wasn’t a case of ‘orphaned books—it was a case of abducted books.’

How could the Hathi Trust have thought it could do this? With such blatant mistakes in their publication of wrongly called “orphan’ works, what attempt was made to contact copyright holders? What attempt was made to institute a proper process? Was it possibly a unilateral decision to dub as ‘orphan’ works which most certainly weren’t? I would very much like to see the evidence of the extent (if any) of Hathi Trust’s attempt to check the ownership and copyright status of the so-called Orphan works.

In blogs and articles, some people have said things like, ‘well, these books languished unread on the shelves, authors should be happy their works are being rescued from oblivion!’ It’s as though a digitised book is seen as somehow different to a physical book; but for heaven’s sake, whilst the format of the book is protected by law, usually to the publisher, the main purpose of copyright protection is to protect the content from unauthorized copying!

The Hathi Trust libraries would never have photocopied these works and stuck them on shelves without permission; so why on earth did they imagine they could do it in digital form? Whatever the motive behind it, it was extraordinary behaviour, which is why a lawsuit was brought against them by individual authors and organisational plaintiffs such as the Authors’ Guild (USA) and the Australian Society of Authors. And as soon as that happened, suddenly, miraculously, the Hathi Trust discovered that ‘mistakes had been made.’

People generally need to realise that there is a huge ‘gold rush’ going on in the area of e-books and digitised intellectual property. Commercial giants like Google, Amazon, Apple and Overdrive (the world’s biggest digital rights management and distribution of e-books to libraries) are, so to speak, pegging out and jumping claims for the mining of the rich goldfields of literature, from creative content to publishing to distribution and library supplies.

They have seen that a digitised future for books leads to immense commercial opportunities for companies canny enough to see the digital writing on the wall, and quick enough to seize control of vast slabs of literature before anyone else cottons on. All of us who love books, whether authors, readers, publishers or libraries, need to be aware of the dangers of the concentration into a few hands of the digital books industry. But apparently it’s not only commercial interests that we need to watch out for!

On the positive side, you could say that Google and the Hathi Trust have done us all a favour by bringing these issues out into the open. Maybe what will come out of all this is a workable system that will allow for modern conditions, and provide a fair deal for creators and good access to readers. And I might add that Australian university and other libraries understand our stance and fully support copyright law whilst also wanting better access for readers. So we have a good opportunity here to get together and work towards that.

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Come back for the final part of the Authors Suing Libraries blogs, the rest of the interview with Sophie Masson, which will look more at the orphaned books issue and a model of preserving Australia’s literary heritage in digital format without compromising the rights of authors.

My initial response was that I thought it made libraries look bad to be infringing copyright. But as the (very civilised) discussion unfolded I realised I didn’t know enough about what these libraries, under the umbrella name of the Hathi Trust, were trying to achieve and why they were being sued.

I figure if I’m going to argue robustly for or against a thing, I should at least understand it. So I started researching.

The first thing I learned was that I’d managed to conflate the issue of the Hathi Trust with the issue of Google Books, whose agreement with authors’ groups about how to manage its approach to digitising every book ever has come a cropper in the US Supreme Court. They are two different things, although linked.

Here is my attempt to unravel it all in plain English and offer my opinion as I go.

Google Books

It started when Google decided it wanted to scan every single book ever, including ones that were still under copyright to the original authors. The motive may have been noble—to preserve the world’s writing and make it accessible to everyone—but there was an undeniable commercial aspect, to sell books.

Are there any benefits for the general public?
Yes. If the Amended Settlement is approved, United States users will be able to search, preview and buy millions of Out-of-Print books that cannot be found in most bookstores and libraries. In addition, each public library building will have a terminal at which users can search for, read and, if the library is able, print out pages from Books in the Google database.

It does sound good in principle, but it’s important to remember that Out of Print is not the same as Out of Copyright, and with the opportunities offered by digital publishing, many rights holders may soon be making out of print books available digitally themselves or through digital publishers without the assistance of Google Books.

However, even those who are not planning to self-reprint digitally have moral and legal rights to what happens to their work, even their out of print work.

To break that down into the personal: the Google Books approach means that Google might scan a digital version of one of my out of print books (like Witch Honour, which was published in the US), without my permission, and then make that available digitally to people who wanted it.

This is despite the fact that I could (and have now) made that book available digitally myself.

I would have had no say in the Google process, though I could (if I knew they’d done it) opt out of it later. Google Books expected to be able to sell copies and send me a cut (if they knew who or where I was) without allowing me to negotiate a price or any other aspect of publication.

Naturally, a whole bunch of people and organisations opposed this model, including non-US authors. The French government, for example, sued to protect the cultural and intellectual property of their citizens. Then they began their own project. More on that later.

Anyway, that idea was challenged in the courts by the Authors Guild (USA). A settlement was reached. The US writers groups were happy enough, but the court has knocked it back as inadequate. The judge felt that the settlement, even though agreed to by all parties, gave Google a monopoly and broke laws pertaining to copyright and anti-competetive behaviour.

At this point in time, no writers groups are suing Google Books, but the Authors Guild and Google Books will have to review their agreement and try it at the courts again.

The Hathi Trust

As part of the earlier Google Books settlement, Google gave up the idea of digitising books they had labelled as ‘orphans’.

‘Orphaned’ books are still subject to copyright law, but Google could not find the official copyright holders. Not being located did not mean the copyright holders were not still out there and entitled to their copyright, of course: only that Google hadn’t found them.

This is where the Hathi Trust steps into the story. This group of five US university libraries recently decided to publish those orphaned works, having obtained the relevant digitised files from Google. This means the Hathi Trust could be giving away copies of books, without the writers and copyright holders getting payment they are entitled to, and possibly interfering with actual contracts and agreements currently under negotiation for still-living authors to release e-books.

Overseas writers were particularly horrified by this. How, for example, was a Japanese or French or Eritrean writer to know their book had been scanned, let alone considered orphaned, in order to assert their copyright?

As a result, The Hathi Trust are being sued by several writers and writers’ organisations, including the Australian Society of Authors.

Do writers have a right to be paid for their work?

Amazingly, writers are now having to fight in court for their rights to their intellectual property. And they are being called the bad guys for doing so!

To be very clear here: I make my living as a writer and editor. Most of that work is in the corporate sphere, but a growing part of my living is as a writer of books. My intellectual property is how I make my living. If someone’s going to try and take my work and my words away from me, without my permission or a negotiated contract of how much I am to be paid for my work, I’m going to be a bit miffed – and less able to pay my bills.

For writers (and publishers), one of the huge concerns is that if this initiative goes ahead without a challenge, the law is paving a path to a destination where writers may not be entitled to royalties. A precedent like that could also affect the intellectual property rights of academics, musicians, software designers and other creative jobs.

Copyright is not the paper and ink

Perhaps many people see digitised information as something that should be free, because so much information on the net is free. It is as though my copyright only exists on paper versions of my work.

My copyright is in the words and the order in which they appear, not in the paper and ink. They start life in digital form on my computer, and go through several transmutations in paper and in digital form until published as a paperback or an e-book. No matter what form it’s in, though, it remains my book.

Do people have problems with the intangible nature of intellectual property? If I was a carpenter who made tables and carved beautiful designs in them, people could see the individual item and see that I had made it with my hands. Nobody would think it was okay to just take it away to put in a museum then sell copies of it and give me a tithe of the proceeds, never giving me a say in the process.

But because my words are intangible, and may appear on paper or a screen or in someone saying them aloud, does this mean my right to say those sentences are mine—and to be paid for them—doesn’t count? If you make a thing with your brain and a keyboard rather than your hands, don’t you still have a say in your work?

But isn’t preserving our cultural heritage a good thing?

Of course the preservation of every nation’s literary and cultural history is important, but that does not mean the Hathi Trust approach is appropriate.

Even with the purest intentions, libraries are better off asking authors for their permission and collaboration. This is exactly what the French Government has done with its Gallica project. Alerted to the need, and the dangers of not meeting that need, to create digital archives, the French are working in collaboration with authors, illustrators and publishers to create a proper, protected repository of texts.

Another issue, which I haven’t yet seen discussed, is whether digital archives will actually last the intended distance. Papyrus has lasted thousands of years; good quality paper hundreds. Paper does deteriorate and a more durable form of record-keeping is needed, but it’s not clear to me that digitised data will meet that need in the long term.

What we currently know about digital data is that the tech keeps changing, that data corrupts and that digital data is vulnerable to magnetic fields. The last time I spoke to an archivist about this issue, some years ago, there were concerns about the future of such a relatively young form of retaining texts and images. Even if advances have been made, we haven’t had a thousand years yet to see how well the archives last. All of this may end up wasted effort.

Writers are interested in the future too. It would just be nice if our right to earn a living from our work wasn’t seen as some kind of vulgar grab for money.

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Come back next time for my interview with Sophie Masson of the Australian Society of Authors about the Hathi Trust, Google Books, Project Gutenberg, the Gallica archiving project and whether patent law is confusing the issue.

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I acknowledge the traditional owners of the land I work upon in Melbourne/Birraranga, the Wurundjeri people of the Kulin Nation.

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